The times they are a changin': the impact of technology and social media on the public workplace, part II.

• Author: Hearing, Gregory A.
• Position: LABOR AND EMPLOYMENT LAW

First Amendment concerns are not the only constitutional complexities presented to public sector employers in the information age. The increased access to information made possible through the advancement of technology and the emergence of social media has also influenced societal norms relating to privacy. In their renowned article, "The Right to Privacy," (1) Samuel D. Warren and Louis D. Brandeis stated that:

[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops .... Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt."

Those same sentiments ring true today as the digital records from our Internet use, emails, texts, tweets, blogs, and the like create a perpetual and permanent record of our lives and conduct. As the legislature and the courts seek to create and further define the boundaries of the law in response to the proliferation of this manner of technology and social media in our society, the same concerns voiced by Warren and Brandeis 120 years ago remain a significant motive behind their efforts.

For instance, the Electronic Communications Privacy Act (ECPA), (2) was enacted by Congress "to update and to clarify federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies." (3) More recently, the ECPA was updated to include the Stored Communications Act (SCA), (4) which prohibits the intentional access of stored communications without, or in excess of, authorization. Cases interpreting the application of these statutes in the context of social media are becoming more prevalent as the court systems catch up to the use of these technologies by society and in the workplace. (5) Several states have also enacted legislation aimed at protecting employee privacy rights relating to electronic communications in the workplace. Connecticut recently adopted legislation that requires employers to conspicuously post a notice that states the types of electronic monitoring being used by the employer and imposes monetary penalties for violations. (6) Delaware enacted a similar law requiring employers to provide prior notice of monitoring of telephone transmissions, email, and Internet usage. (7) As people are confronted with the new challenge of living and working in a world where, as one commentator has described, "every online photo, status update, Twitter post and blog entry by us and about us can be stored forever," these new laws, specifically tailored to meet the growing need to protect against the manner of intrusion into our private lives made possible by technological advances, are defining the boundaries of employers' responses to workplace concerns. (8)

In the public employment arena, however, the boundaries of employer conduct in the context of privacy are also defined by constitutional principles drafted long before the emergence of the issues presented in the modern workplace. For instance, Fla. Const. art. I, [section] 23 provides that "[e]very natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." Florida courts have recognized the potential constitutional ramifications of employers delving too deeply into an employee's private affairs. In a dissent to a well-publicized Florida Supreme Court case, City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995), involving the constitutional challenge of a city regulation requiring job applicants, as precondition of employment, to sign affidavits stating...